With no legal or ethical regulations in Australia, the decision of what to do with the digital remains of those who have passed away is likely to be faced by a growing number of us. Deakin University philosopher Dr Patrick Stokes argues that, in most cases, they should be kept alive.
Dr Stokes is a senior lecturer within Deakin’s School of Humanities and Social Sciences and has been researching the ethics of dealing with digital assets like social media accounts.
“While the law continues to be silent on how to deal with the digital assets of those who have died, I argue that people who have passed away have a right to be remembered or continue to exist as objects of moral regard,” Dr Stokes said.
“While there may be good reasons to delete some accounts, I believe the default should be preservation.”
In a submission to the NSW Law Reform Commission’s review of digital assets laws, Dr Stokes has argued that the issue is as much an ethical matter as a legal one.
“An unexpected side-effect of the social media era has been the ongoing presence of the dead online,” he said. “While the likes of Facebook profiles are an important part of how we mourn, commemorate, and even speak to those who have passed away, they have also proven a challenge for governments, tech companies, and families grappling with what to do with the digital assets.
“Some jurisdictions globally have started to work ‘digital legacies’ into estate law, but things like social media accounts remain hostage to the terms of service of the companies who run them. It’s encouraging that these are part of what the NSW inquiry will look into.
“Along with the legal considerations, how we treat digital remains also throws up ethical issues that should not be ignored. Do we have a right to simply delete the dead? And how should we respond to other emerging technologies, such as chat bots, that imitate the dead? Are these just cool new tools to remember the dead, or a way of exploiting and even replacing them?
“My research has shown that social media profiles are a virtual part of the person and there are prima facie moral reasons not to delete them, even if these reasons can sometimes be outweighed by other moral considerations.”
Dr Stokes said that policy responses have applied existing ownership concepts or rights of disposal without acknowledging the ways in which digital assets differ from traditional assets, such as houses or furniture.
“Unlike physical assets like physical books and CDs, many digital assets are licensed rather than owned so we can’t bequeath eBooks or iTunes downloads,” he said. “One way of viewing the digital assets of the dead is not through the lens of deceased estates, but as human remains.
“These are not heritable property; families do not inherit ownership of their loved one’s body, but nonetheless have certain (highly-regulated and circumscribed) rights of disposal. Reconceptualising certain classes of digital assets as remains, instead of property, changes our approach to how we should deal with these items.”
Given this ambiguity, Dr Stokes said it was a good idea for individuals to make it clear what they want done with their digital legacy in wills. However, if we are making those decisions for the deceased, it is important to consider what they would have wanted, rather than simply what would suit us as the living.
The emergence of chat bots created from digital remains is another area requiring ethical, legal and policy consideration.
“This is far more troubling and needs serious regulation because it is almost exploiting the dead,” he said. “Text messages or social media profiles that are left behind are being turned into an artificial intelligence-driven chat bot that people can interact with that sounds like a deceased person. Who has the right to make decisions over this way of memorialising the dead? Is it exploiting, or even replacing, them? These are troubling questions that we need to consider.”
Published by Deakin Research on 7 August 2018